Supreme Court – Page 30

Ann Tweedy on the Impact of the McGirt Decision

September 11, 2020Matthew L.M. Fletcher

Ann Tweedy has posted “Has Federal Indian Law Finally Arrived at ‘The Far End of the Trail of Tears’?”, forthcoming in the Georgia State University Law Review, on SSRN.

Here is the abstract:

This essay examines the United States Supreme Court’s July 9, 2020 decision in McGirt v. Oklahoma, which held that the historic boundaries of the Creek reservation remain intact, and argues that the decision likely signals a sea change in the course of federal Indian law of the magnitude of Obergefell v. Hodges in the LGBT rights arena. The essay shows how the opinion lays a very strong foundation for a much-needed return to traditional federal Indian law principles, respectful treatment of tribal governments as a third sovereign in the American system, and an understanding of fairness from the perspective of tribes and Native individuals. The essay concludes with the hope that Justice Gorsuch’s majority opinion will foster predictability in the wildly unstable area of disestablishment and diminishment jurisprudence, as well as in other facets of federal Indian law.

Indian Law Professors Amicus Brief in Fulton v. City of Philadelphia

August 21, 2020Matthew L.M. Fletcher

Here:

Amicus Brief of Indian Law Professors

An excerpt:

Amici write to explain how the long and shameful history of treatment of Indian children by the child welfare system in the United States demonstrates the dangers of and substantial harms inflicted by discrimination in this setting, including in particular discrimination based on the religious beliefs of government employees or agents

Miigwetch to April Youpee-Roll for taking the lead!

Elizabeth Reese on McGirt: “Welcome to the Maze: Race, Justice, and Jurisdiction in McGirt v. Oklahoma”

August 16, 2020Matthew L.M. Fletcher

In the University of Chicago Law Review Online, here. An excerpt from this outstanding essay:

The morning of July 9th, American Indian tribal citizens and non-Indian residents of eastern Oklahoma woke up and experienced a similar shock. The United States Supreme Court, in an opinion authored by Justice Neil Gorsuch, announced that the Muscogee (Creek) Nation’s reservation boundaries had never been disestablished.

The Supreme Court’s 5–4 decision in McGirt v. Oklahoma implies, though does not explicitly hold, that eastern Oklahoma is, was, and always had been within the undiminished boundaries of the Muscogee (Creek), Cherokee, Chickasaw, Choctaw, and Seminole Nation’s reservations. The ruling was shocking and confusing for both groups of American citizens because they were experiencing a bit of what “justice” is like for the other group for the very first time.

That Thursday morning gave American Indian people a glimpse of what it must be like not to be “the Indians.” On that day, American Indians weren’t reduced to a metaphorical Red Sea, always parting to make way for White Americans’ interests. Instead, they were able to win despite those interests and without the indignities that have become the norm in the Supreme Court’s Indian law opinions.

That same morning gave the non-Indians of eastern Oklahoma a glimpse of part of the Indian experience: waking up to helpless confusion about what the United States government has just done to your lands and rights, followed by the even greater problem of trying to understand the confusing jurisdictional rules that have been the status quo in Indian Country for a long time.

At times like this I think that Lady Justice must have a sense of humor.

Troy Eid: “McGirt v. Oklahoma: Understanding What the Supreme Court’s Native American Treaty Rights Decision Is and Is Not”

August 13, 2020Matthew L.M. Fletcher

Here, in the National Law Review.

Wyoming Public Media: “Why The Supreme Court’s McGirt Decision Resonates On The Wind River Reservation”

August 12, 2020Matthew L.M. Fletcher

Here.

MoJo: “How Native Tribes Started Winning at the Supreme Court”

August 6, 2020Matthew L.M. Fletcher

Here.

News Media Writers: Please Stop Saying “Half” of Oklahoma is “Indian Lands” or “Indian Territory” — It’s Not (Yet)

August 5, 2020August 6, 2020Matthew L.M. Fletcher

In a bit, I will publish a post recommending Turtle Talk readers check out the Mother Jones article “How Native Tribes Started Winning at the Supreme Court.” It’s an excellent read on how the Tribal Supreme Court Project started after tribal interests lost 4 out of 5 cases in 2001 and first met (on 9/11 in D.C. while the Pentagon was burning) to figure out how to stop losing so much.

But the subtitle . . . “In July, the court ruled that half of Oklahoma is an Indian reservation. The decision was two decades in the making.” No good. IT IS NOT TRUE THAT HALF OF OKLAHOMA IS OWNED BY INDIAN TRIBES. Stop it.

The McGirt case involved the Muscogee (Creek) Nation’s reservation, which is maybe 10 percent of Oklahoma (I don’t know the exact amount). Yeah, four other tribes (Cherokee, Choctaw, Chickasaw, and Seminole), and maybe others have similar histories and can expect to benefit from the McGirt case. If you count all the Five Tribes you might get to 40 percent.

Here’s the NYTs map that shows the land areas of all of the five tribes likely affected by McGirt:

scotus-oklahoma-Artboard_1_copy

Half? Sure, whatever.

Here’s the same one with the Creek rez circled (the purple dot in what is probably Roger Mills or Beckham county is an error, I was trying to stab Custer in Custer County but I missed):

Inkedscotus-oklahoma-Artboard_1_copy_Creek

That’s the area covered by McGirt. That’s all (for now anyway). There will be lawsuits that address the other reservations in time, see, e.g., here). But for now, this is it.

News writers, don’t be the State of Oklahoma, trying and failing to win this case by mischaracterizing McGirt’s claims by invoking the “half of Oklahoma” thing (here, page 1 of the argument, page 16 of the pdf).

Stop it!!!!

Bad actors (bad!) include:

SCOTUSblog (“entire eastern half of Oklahoma” — really?! — but from these guys I expect it — an angel dies every time someone clicks on SCOTUSblog)

NPR (“Supreme Court Rules That About Half Of Oklahoma Is Native American Land”)

S&P Global (“a large swath of land (approximately 19 million acres that is home to roughly 48% of the state’s population) in eastern Oklahoma (AA/Negative) as tribal reservation land for purposes of federal criminal law”; loving the reference to Oklahoma’s bond rating though)

Julian Brave NoiseCat in the Atlantic (“Or, put more plainly, 19 million acres composing 47 percent of the state of Oklahoma—an area that’s home to 1.8 million people—is still Native land.”)

Heritage Fundation guy. (“This is especially important now that the Supreme Court has determined that almost half of Oklahoma is, in fact, tribal land.”)

National Law Review (“half the State of Oklahoma – 113 years after it was admitted as the 46th State in the Union – being declared ‘Indian Lands’ and given back to the Creek Nation Native Americans”)

A few others, most of whom have since changed their headlines because apparently there is no memory on the internet.

How about this one? SCOTUS Holds Creek Reservation is Indian Country

That’s enough. These are good people, good places (mostly, looking at you SCOTUSblog). We love you and we’ll keep posting your great work.

Everyone. Just. This. One. Thing.

Marshall Project Profile of Post-McGirt Criminal Jurisdiction in Oklahoma

August 4, 2020August 5, 2020Matthew L.M. Fletcher

Here.

And, yes, we know the Marshall Project headline is inaccurate, but High Country News (publishing in tandem with M.P.) did it better: “How the Supreme Court upended a century of federal Indian law.”

United Parcel Service Inc. v. New York Cert Petition

August 4, 2020Matthew L.M. Fletcher

Here:

UPS Cert Petition

Appendix

New York Brief in Opposition

Questions presented:

1. The Contraband Cigarette Trafficking Act prohibits the knowing transportation of “a quantity” of more than 10,000 untaxed cigarettes in the “possession” of unauthorized persons. 18 U.S.C. § 2341(2). The first question presented is whether multiple shipments from different shippers may be aggregated to satisfy the 10,000-cigarette threshold.
2. The Prevent All Cigarette Trafficking Act of 2009 exempts UPS by name if its tobacco-delivery agreement with New York is “honored” nationwide. 15 U.S.C. § 376a(e)(3)(B)(ii)(I). The second question presented is whether substantial compliance is a prerequisite to this statutory exemption.

Second Circuit materials here:

CA2 Opinion

UPS Brief

New York Opening Brief

UPS Reply

New York Reply

DCT materials here.